WASHINGTON -- In order to block a Senate rule change in January making the filibuster a more public act, Republicans have been hoping to peel off at least six Democrats, depriving the majority of the 51 votes needed. One of their most promising targets has been veteran Sen. Dianne Feinstein (D-Calif.), who has been reluctant to change the rules on a party-line vote because of concerns about what will happen when Democrats are once again in the minority.
But in recent weeks, Feinstein has expressed a willingness to go with the party-line vote. On Sunday, she did so again, even after a bipartisan group of eight senators had put forward a plan on Thursday for much milder filibuster reforms that would leave the current rules in place. On "Fox News Sunday," Feinstein said she's hopeful the bipartisan plan will work out, but she wouldn't rule out the Democrats' going it alone.
"I think there are some changes that can be made on a bipartisan basis," Feinstein said. "I think that's where things are going right now, to see what we can agree upon. If we can't, then the so-called nuclear option comes into play. I'm hopeful that that is not the case, because what comes around goes around."
Pressed on whether she'd support a 51-vote approach -- what opponents call the nuclear option and advocates call the constitutional option -- if the bipartisan deal fell apart, she wouldn't rule it out.
"At this stage, I don't believe it's necessary," Feinstein said, emphasizing at this stage. "I believe we can work something out that both parties can accept."
The Constitution allows the Senate to write its own rules, which is why Democrats say that only a majority is needed at the beginning of the term to write new rules. Opponents point to Senate Rule V, which states that the rules can only be changed with a two-thirds vote. Democrats point out that Senate Rule V is not part of the Constitution and argue that no previous Senate can tie the hands of a current one.
The main dispute over filibuster reform focuses on a proposal from Sen. Jeff Merkley (D-Ore.) to require senators to speak if they wish to filibuster legislation. Under current rules, members need not even be on the Senate floor to filibuster.
Merkley's "talking filibuster" proposal is wildly popular with the public. A HuffPost/YouGov poll conducted in late November found that 65 percent of Americans believe senators should have to participate in debate for the duration of a filibuster, while only 9 percent said that senators should be able to filibuster without being physically present.
In a statement, Fix the Senate Now, a progressive and labor coalition advocating filibuster reform, outlined the following concerns with the bipartisan approach:
Lacks Transparency and Accountability: Instead of the "talking filibuster," a reform that would force those wishing to block legislation to make themselves public to explain their objection, today’s proposal would provide no transparency and accountability to obstructionists, continuing to allow for a silent filibuster of legislation. And it would require another "gentlemen's agreement" between the two party leaders to promise to not object on behalf of any members of their caucus. Recent history has demonstrated the failure of such agreements in the Senate.
Would Still Provide Multiple Chances to Filibuster Legislation: The Fix the Senate Now coalition has called for eliminating filibusters on the motion to proceed -- a reform that along with eliminating the filibuster on multiple motions to go to conference would leave one opportunity to filibuster a bill during the legislative cycle, instead of the current four. While the package offered by the eight Senators would combine the current three motions needed to go to conference into one motion, that one motion would still require a cloture vote. Further, the proposal would not permanently make the motion to proceed a non-debatable motion.
Obstructionist Status Quo for Many Executive Branch and Judicial Nominees: The reform package does not sufficiently streamline the executive branch or judicial nominations process for all nominations, as it would only reduce post-cloture debate time for select nominees. Given the judicial vacancies crisis and the continued obstruction of qualified and non-controversial nominees, this proposal falls well short of the necessary reforms. For example, while it would reduce post-cloture debate time for district court nominees, it would not do so for circuit court nominees.
Instead of today's watered-down offering, which is more status quo than a serious reform package, the Senate should move forward on the following:
Eliminate the ability to filibuster the motion to proceed;
Require that those wishing to block legislation or nominations take the floor and actually filibuster -- i.e., mandating "talking filibusters";
Assert that 41 Senators must affirmatively vote to continue debate rather than forcing 60 Senators to vote to end debate; and,
Streamline the confirmation process for all nominees by eliminating the currently required 30 hours of post cloture debate on a nominee to zero or at a minimum no more than 2 hours.